Decision

Decision for Scaff Solutions Limited (OM2024138) and Scaff Solutions West Limited (OM2027103)

Published 13 January 2021

Decision of the Deputy Traffic Commissioner for Scotland

Goods Vehicles (Licensing of Operators) Act 1995 (The Act)

Conjoined Public Inquiries held at Edinburgh on 18 September 2020

1. Background

A conjoined Public Inquiry was called to consider the application for a restricted licence submitted by Scaff Solutions Ltd on 9 May 2019 for 2 vehicles, and the application for a restricted licence submitted by Scaff Solutions West Ltd on 19 September 2019 for 3 vehicles. The applications appeared to be connected.

Call up letters to a Conjoined Public Inquiry set down for 18 February 2020 were issued on 13 January 2020.

I granted Scaff Solutions West Ltd’s request that the Conjoined Public Inquiry set down for 18 February 2020 should be adjourned to enable legal advice to be obtained.

On 27 February 2020, Mr Tait, the director of Scaff Solutions Ltd, applied to withdraw Scaff Solutions Ltd’s application. I refused that application on the basis that there were serious allegations of unauthorised operation and there was a concern that Scaff Solutions West Ltd’s application was being used to avoid the possible refusal of Scaff Solutions Ltd’s application.

2. The Conjoined Public Inquiry

The following were in attendance at the conjoined Public Inquiry at Edinburgh on 18 September 2020:-

(1) Paul Tait – director of Scaff Solutions Ltd

(2) Tom Docherty – solicitor representing Scaff Solutions Ltd

(3) Lee McIver – director of Scaff Solutions West Ltd

(4) Neil Kelly – solicitor representing Scaff Solutions West Ltd

(5) Traffic Examiner Paul Dunkerley (attended by videolink)

Mr Docherty, on behalf of Scaff Solutions Ltd, intimated that Scaff Solutions Ltd were no longer insisting on the application. Mr Tait was attending the Public Inquiry as a matter of courtesy.

Both Mr Docherty and Mr Kelly agreed that TE Dunkerley’s Public Inquiry Statement and Addendum could be treated as his evidence in chief. Neither wanted to cross examine TE Dunkerley.

2.1 TE Paul Dunkerley’s evidence

On 9 May 2019 Scaff Solutions Ltd operated an Iveco, 2-axle rigid 7500kg HGV SK17 KYS loaded with scaffolding. The DVSA had carried out a routine mobile check at M8 Harthill services (east bound). Scaffolding was being transported from Clydebank to Edinburgh where it was to be erected. On the same day Scaff Solutions Ltd applied for a restricted licence on the same day as the encounter.

On 11 June 2019, a letter was sent by OTC Leeds acknowledging receipt of Scaff Solution Ltd’s application and requiring further information about finances. The letter confirmed that Scaff Solutions Ltd could not operate HGVs until it had been granted authority to do so, the grant fee had been paid and the licence documents issued.

On 21 June 2019, Lee McIver emailed OTC Leeds asking for interim authority to operate for Scaff Solutions Ltd. The application was not granted and was refused on 4 September 2019 when a decision was made to convene a public inquiry.

On 22 July 2019 Scaff Solutions operated an Iveco, 2-axle rigid 7500 kg HGV SP63 BZW loaded with scaffolding. The DVSA had carried out a routine mobile check at M8 Harthill services (east bound). Mr Tait had claimed that he had interim authority to operate HGVs.

TE Dunkerley interviewed Mr Tait on 30 August 2019. Mr Tait, on the advice of his solicitor, declined to comment in response to any questions other than his name, date of birth, place of birth and position in the company. TE Dunkerley spoke to Lee McIver, who was the office manager of Scaff Solutions Ltd while trying to arrange a date for Mr Tait’s interview.

ST17 KYS had been hired by Scaff Solutions Ltd from LCB Vehicles Ltd since 23 May 2017 and was still on hire on 20 February 2020. SP63 BZW had been hired from the same company since 22 October 2018 and was still on hire on 20 February 2020.

National ANPR camera data showed that in the period 22 November 2019 to 20 February 2020 ST17 KYS had been captured on 22 instances being used on public highways between and that SP63 BZW had been captured on 27 instances being used on public highways – a total of 49 instances.

The DVSA sent pre-impounding letters on 4 March 2020. LCB Vehicles Ltd retrieved both vehicles from Scaff Solutions Ltd around 20 March 2020.

2.2 Paul Tait

Mr Tait gave evidence that he was the sole director and shareholder of Scaff Solutions Ltd. The business had started 5 years ago and did scaffolding in Glasgow. Mr Lee McIver was a longstanding friend. Mr McIver had been in the business from its early days. He was the office manager. If there were jobs that Mr Tait was unable to take on because they were outside the Glasgow area he would pass them on the Mr McIver. Mr Tait declined to answer any questions about unlawful operating on legal advice.

2.3 Lee McIver

Mr McIver explained that Scaff Solutions West Ltd was not trading. He produced evidence that it satisfied the financial requirements for a restricted licence. He explained that he had done a transport manager’s CPC course in June 2019. He gave evidence of how he would ensure that if Scaff Solutions West Ltd was given a licence it would be a compliant operator. He had deliberately chosen the name Scaff Solutions West Ltd so that work could be channelled from Scaff Solutions Ltd. He needed two 7.5 tonne vehicles because it would not be cost effective to use small vehicles for work outside Glasgow. His company would pay for hire, fuel and insurance. If the licence was granted he would be happy to produce bank accounts, contract of employment, preventative maintenance records and drivers’ hours analysis to show that it was a separate business from Scaff Solutions Ltd. He denied that he was setting up his company to enable Mr Tait to keep his business going. Mr McIver explained that he would not have to buy any scaffolding because some of the scaffolding that Scaff Solutions Ltd used belonged to Mr McIver. Mr McIver said that he had seen a business opportunity as Mr Tait could not do work out of Glasgow and Scaff Solutions West Ltd would be able to get that work.

3. Findings in fact re Scaff Solutions Ltd

Mr Docherty had no submissions to make. Scaff Solutions Ltd was not insisting on its application. In the absence of any evidence to the contrary I accept the evidence of TE Dunkerley and I find that Scaff Solutions Ltd used goods vehicles on public roads on 9 May 2019, 22 July 2019 and on 49 instances from 22 November 2019 to 20 February 2020 without an operator’s licence.

It is reasonable to infer that these vehicles had been operated unlawfully since they were hired by Scaff Solutions Ltd (23 May 2017 for ST17 KYS and 22 October 2018 for SP63 BZW). Mr Tait can have been in no doubt after the second encounter on 22 July 2019 that Scaff Solutions Ltd had no interim authority to operate the two HGVs in its possession. The unlawful operation by Scaff Solutions Ltd of these vehicles on 49 occasions between 22 November 2019 and 20 February 2020 was clearly done in the knowledge that Scaff Solutions Ltd was breaking the law. Moreover, Scaff Solutions Ltd obtained a financial benefit and a competitive advantage by carrying out work that should have been carried out by other compliant scaffolding businesses.

I am satisfied that Scaff Solutions Ltd is unfit to hold an operator’s licence.

4. Decision on Scaff Solutions Ltd’s application for a restricted licence

I find that the applicant has not proved on the balance of probabilities that it is “not unfit to hold an operator’s licence” and therefore the requirement of section 13B of the 1995 Act is not satisfied.

4.1 Submissions for Scaff Solutions West Ltd

Mr Kelly accepted that a concern might be that Scaff Solutions West Ltd was a device to allow Mr Tait and Scaff Solutions Ltd to get round the likely difficulties that they would face in obtaining a restricted licence given the history of illegal operating. Mr Kelly submitted that it could not be a device because the application was for a restricted licence. Scaff Solutions West Ltd would not be able to carry scaffolding for Scaff Solutions Ltd. The grant of a restricted licence to Scaff Solutions West Ltd would not assist Scaff Solutions Ltd in any way.

Mr Kelly submitted that the strongest piece of evidence in support of his argument was that Mr McIver had invested time and money in obtaining his Transport Manager’s CPC. He was not giving glib assurances. Mr McIver would make his own decisions and he would be the controlling mind of the company.

Mr Kelly’s argument was the only way in which Mr McIver could show that Scaff Solutions West Ltd was fit to hold a restricted licence was if the company was allowed to operate. I should accept the undertakings that bank statements would be produced to show that it was a separate business from Scaff Solutions Ltd – that it paid drivers, fuel, hire of vehicles, suppliers etc. Mr Kelly argued that the proposed undertakings would address any concerns about whether or not it was a standalone business.

4.2 The issue in the application of Scaff Solutions West Ltd

The issue in this case is whether the ‘applicant is not unfit to hold an operator’s licence by reason of’ any of the matters set out in s.13B(1)(a) or (b) of the Goods Vehicle (Licensing of Operators) Act 1995 with particular reference to paragraph 1(e) of Schedule 2 (I am satisfied that the applicant satisfies the other requirements for a restricted licence). The burden of proof is on the applicant. In this case I have to consider the circumstances surrounding the making of the application by Scaff Solutions West Ltd and to determine whether the application was a device to get round the difficulties that Scaff Solutions Ltd had as a result of unlawful operation of HGVs.

5. Findings in fact and reasoning re Scaff Solutions West Ltd

Although the applicant is a limited company given Mr McIver is the sole director and shareholder and is the controlling mind of the company, it is appropriate for me to treat him as the applicant.

Mr McIver gave evidence that Scaff Solutions West Ltd would be a separate business from Scaff Solutions Ltd and that it was not a device to enable Mr Tait to get round the difficulties that Scaff Solutions Ltd faced.

I did not find Mr McIver’s evidence convincing. On his own evidence he was intertwined with the activities of Scaff Solutions Ltd – he said that he owned scaffolding that was used by Scaff Solutions Ltd and that he intended to use for Scaff Solutions West Ltd. Mr McIver was, and is, the office manager of Scaff Solutions Ltd. Mr McIver may remain in that position even if Scaff Solutions West Ltd obtained a restricted licence. Mr McIver intends to obtain work for Scaff Solutions West Ltd through Scaff Solutions Ltd. Mr McIver deliberately chose the name of his company so that it would appear to be closely connected to Scaff Solutions Ltd.

Mr McIver said that his motivation for setting up his company was that he saw a gap in the market because Scaff Solutions Ltd only operated within the Glasgow area. It seems to me to be more likely Scaff Solutions Ltd only restricted its operations to the Glasgow area after it was forced to stop operating HGVs unlawfully.

I note that both times that Scaff Solutions Ltd’s vehicles were stopped by DVSA it was at Harthill Services on the M8 roughly halfway between Glasgow and Edinburgh. On the first occasion the HGV was laden with scaffolding for a job in Edinburgh. On the second occasion the HGV was laden with scaffolding for a job in Dunfermline. Scaff Solutions Ltd had hired HGVs on 23 May 2017 (ST17 KYS) and 22 October 2018 (SP63 BZW). It is reasonable to assume that the HGVs were kept on hire because they were being used. Given the proved unlawful operation of the HGVs outside the Glasgow area on two occasions it is reasonable for me to infer that these were not the only two occasions when Scaff Solutions Ltd had work outside the Glasgow area.

I find the timing of Scaff Solutions West Ltd’s incorporation and application for a restricted licence suspicious. The company was incorporated on 9 May 2019 and on that day Mr McIver became the sole director and shareholder. 9 May 2019 was the day of DVSA’s first encounter with Scaff Solutions Ltd’s HGVs. The application was submitted on 19 September 2019. This was less than 3 weeks after Mr Tait had been interviewed by TE Dunkerley about Scaff Solutions Ltd’s unlawful operation of HGVs. Mr Tait was represented by a solicitor at that interview. Mr Tait would have been in no doubt after that date that Scaff Solutions Ltd might encounter difficulties in obtaining a restricted licence.

Mr McIver said that the purpose of Scaff Solutions West Ltd’s application was, at least in part, so that it could carry out jobs that Scaff Solutions Ltd was unable to do. While I do not know, and cannot speculate about, whether any financial benefit might flow to Scaff Solutions Ltd or Mr Tait if Scaff Solutions West Ltd is granted a restricted licence, it is clear from Mr McIver’s evidence that work that Scaff Solutions Ltd would be unable to carry out because it had broken the law, would flow to Mr McIver – a friend of Mr Tait, the director of Scaff Solutions, and an employee of his company. This is at best highly suspicious and requires the applicant to satisfy me that these suspicions are unfounded. The applicant has not done so.

For all of the reasons above, the applicant has not satisfied me that its application is not a device to get round the problems that Scaff Solutions Ltd faced in obtaining its own restricted licence. I find that the applicant has not proved on the balance of probabilities that it is “not unfit to hold an operator’s licence” and therefore the requirement of section 13B of the 1995 Act is not satisfied.

6. Decision on Scaff Solutions West Ltd’s application for a restricted licence

I refuse the application because the requirement of section 13B of the 1995 Act is not satisfied.

Hugh Olson

9 December 2020

Deputy Traffic Commissioner for Scotland